Sridhar Rao S/O Narayana Rao vs Alikhan S/O Late Akbarsab
2021 Latest Caselaw 1109 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 18th DAY OF JANUARY, 2021

                              BEFORE

        THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

         REGULAR SECOND APPEAL No.6010/2012

BETWEEN:

Sridhar Rao S/o. Narayana rao,
Age 65 years, Occ: Retired Employee,
R/o. Oddaroni, Gangavathi,
Tq. Gangavathi, Dist: Koppal-583227

                                                    ... Appellant
(Sri. Rajashekhar R. Gunjalli, Advocate)

AND

1.    Allikhan S/o. Late Akbarsab
      Age 51 years, Occ: Mason,

2.    Mahaboob S/o. Late Akbarsab,
      Age 41 years, Occ: Business,

3.    Husen S/o. Alikhan,
      Age 7 years, Occ: Electrician.

All are R/o. Oddaroni, 19th Ward, Gangavathi,
Tq. Gangavathi, Dist. Koppal - 583227.

                                                 ... Respondents
(Sri. B.Sharanabasava, Advocate for C/R1 to 3)
                                        2




      This RSA is filed under Section 100 of CPC, against the
Judgment & Decree dated 21.06.2012 passed in R.A.No.15/2011 on
the file of the Senior Civil Judge at Gangavati, dismissing the
appeal, filed against the Judgment dated 14.06.2011 and the
decree passed in O.S.No.27/2010 on the file of the Principal Civil
Judge and JMFC, Gangavathi, dismissing the suit filed for
declaration & mandatory injunction.

     This RSA having been heard and reserved for Judgment on
06.01.2021, this day, the Court, delivered the following:


                                  JUDGMENT

Challenging the Judgment and Decree dated 21.06.2012

passed by the Senior Civil Judge at Gangavati confirming the

Judgment and Decree dated 14.06.2011 passed by the Principal

Senior Civil Judge and JMFC, Gangavati in O.S.No.27/2010, this

appeal is filed.

2. The appellant herein was the plaintiff in

O.S.No.27/2010, the respondent Nos.1, 2 and 3 herein were

defendant Nos.1, 2 and 3 respectively in the suit. The plaintiff was

the appellant in R.A.No.15/2011 and the defendants were the

respondents. For the sake of convenience the parties will

hereinafter be referred to as per their respective ranks before the

trial Court.

3. Brief facts leading to this appeal are that, the plaintiff

Sri. Shridharrao S/o. Narayanrao filed O.S.No.27/2010 against the

defendants seeking for declaration that he is entitled to use of suit

window for air and light and for a mandatory injunction against

defendants to remove the shed and other structures built by them

over suit window and further for permanent injunction restraining

them from erecting shed or any other structure over the suit

window and against trespassing over the same. In the plaint it was

stated that the plaintiff was absolute owner and possessor of

residential house bearing No.4-7-42/4-7-38, situated at Ward

No.19, Oddar Oni, Gangavathi which was the suit schedule

property. It was purchased by plaintiff from one Sri. Basappa

Gaded who had purchased it from Sri. Gurappa Kariveerannavar

under registered sale deed. It is stated that from date of purchase,

plaintiff was in lawful possession and enjoyment of the suit

property. It was stated that the house was constructed about 50

years ago and it was having a window towards the north of the

house referred to as the suit 'window'. The window was attached to

the kitchen and existed from the time of construction. It was stated

that the plaintiff was the owner of dominant heritage with regard to

user of window for passage of light and air to his kitchen. It was

further stated that plaintiff had been using it for passage of air and

light without interruption for more than 20 years. It was further

stated that the window was infront of defendants' house. It was

stated that the window opened into public road therefore

defendants had not caused any problems to use of window by

plaintiff for passage of light and air until the month of November,

2009. When the defendants tried to erect a shed, plaintiff brought it

to notice of the municipal authority. But on 02.01.2010, defendants

erected the shed and obstructed passage of light and air to the

window of the plaintiff's house. It was further stated that the

purpose of erecting the shed was to cook meat in the shed and to

make huge smoke enter the kitchen of the plaintiff by obstructing

air and light to pass. It was stated that the plaintiff's house was

surrounded by tall houses. The defendants were politically and

economically influential and because of which no action was taken

by CMC Gangavati. It was stated that the blockage of window had

increased risk of bursting of gas cylinder, etc.,

4. On service of summons, defendant Nos.1 to 3 entered

appearance and filed written statement admitting ownership of

plaintiff over suit schedule property but specifically denying

existence of any window towards the north side of his house

attached to the kitchen. The existence of dominant heritage and

status of plaintiff as dominant owner were denied. It was

specifically contended that defendants had put up their shed since

more than 20 years and denied that it was put up on public road.

They asserted that it was constructed on the open space belonging

to them and denied the shed causing any obstruction to passage of

light and air through the window as claimed by the plaintiff. The

defendants further denied that blockage of window on plaintiff's

house had materially damaged and decreased its value. It was

specifically stated by defendants that initially entire property

including suit house property and adjoining house towards south of

house belonging to plaintiff were owned and possessed by Sri.

Akbhar Khan and his elder brother Sri. Khadar Khan. Sri. Akbar

Khan was the father of defendant No.1 and 2 and grand-father of

defendant No.3. In the year 1976 the houses including plaintiff's

house were sold to Sri. Gurappa Kariveerannavar. It was further

stated that the house belonging to plaintiff and house of defendant

No.1 adjoined each other and were built with same common wall.

No window ever existed and that suit was filed with an intention to

open a new window in the place alleged by the plaintiff. It was

further stated that the suit house consisted of only one small room

measuring 8 ft X 8 ft with a main door opening towards western

side and without any window on northern wall. It was stated that

the main door measuring 3 ½ feet X 7 feet was the main way for

ingress and egress of light and air into the said room from time

immemorial and the plaintiff was using the said main door for air

and light from the date of his purchase. It was also stated that, the

defendants had put up the shed with metal sheet permanently in

front of their house adjacent to northern wall of plaintiff's house to

protect the open space from rain and sun as they had stored

equipment and needy things there. On the said pleadings the trial

Court framed the following issues.

1. Whether the plaintiff proves that there is a suit window in existence, he has got right of easement of air and light through said window?

2. Whether the plaintiff proves that he is in lawful possession of the suit window?

3. Whether the plaintiff further proves that there is an interference by the defendants by way of erection of shed and any other structures over the suit window?

4. Whether the plaintiff is entitled for the relief of mandatory injunction to remove shed and other parts of structure over the suit window?

5. Whether the plaintiff is entitled for relief of perpetual injunction as prayed?

6. What order or decree?

5. In support of his case, the plaintiff examined his GPA

Holder as P.W.1 and two other witnesses as P.W.2 and 3. Ex.P.1 to

37 were marked. In rebuttal defendant No.2 was examined as

D.W.1 and another witness was examined as D.W.2 and Ex.D.1 to

Ex.D.5 were marked. On consideration, the trial Court answered

issue Nos.1 to 5 in the negative and passed the impugned

Judgment and Decree dismissing the suit. Aggrieved by the same,

plaintiff filed R.A.No.15/2011. In the appeal it was contended that

trial Court did not properly considered the documents Ex.P.3,

Ex.P.4 and Ex.P.6 produced by plaintiff and observation by trial

Court that sale deed in favour of plaintiff did not mention about

existence of a window on the northern side, were contrary to law.

The burden to prove them ought not to have been placed on the

plaintiff as normally existence of windows are not stated in sale

deeds and plaintiff had established existence of the window by

other oral and documentary evidence. On hearing the submissions

of parties, appellate Court framed following points for its

consideration:

1. Whether the plaintiff proves that there is a suit window in existence, he has got right of easement of air and light through said window?

2. Whether the plaintiff proves that he is in lawful possession of the suit window?

3. Whether the plaintiff further proves that there is an interference by the defendants by way of erection of shed and any other structures over the suit window?

4. Whether the plaintiff is entitled for the relief of mandatory injunction to remove shed and other part of structure over the suit window?

5. Whether the plaintiff is entitled for relief of perpetual injunction as prayed?

6. What order or decree?

6. After answering point Nos.1 to 5 in the negative the

first appellate Court dismissed the appeal. Against concurrent

finding, the plaintiff is in appeal.

7. Learned counsel Sri. Rajashekhar Gunjalli for plaintiff-

appellant submitted that trial Court as well as appellate Court erred

in not considering oral and documentary evidence of plaintiff while

dismissing the suit and the appeal. It was submitted that,

defendants did not dispute ownership of plaintiff over suit schedule

properties and the recitals of sale deeds of plaintiff and his vendor

Ex.P.3 and Ex.P.4 showed existence of public road towards northern

side of the house. It was further submitted that plaintiff purchased

suit schedule property during 1991 and was using the window for

nearly 20 years when in the year 2010 defendants put up shed

towards northern side obstructing passage of air and light through

the window. It was submitted that plaintiff also complained to the

Municipality vide Ex.P.6. It was contended that, merely on the

ground that sale deed of plaintiff did not mention about existence of

window, trial Court ought not to have dismissed the suit. The same

had resulted in miscarriage of justice as normally sale deeds of

houses do not contain description of existence of doors and

windows. Their existence has to be gathered from other evidence.

It was submitted that plaintiff had also examined his neighbours as

P.W.2 and P.W.3 who deposed about the existence of the window.

Even D.W.2 in his cross-examination admitted existence of window

when confronted with photographs Ex.P.7 to Ex.P.30. Referring to

Section 13 of the Easements Act, it was submitted that, the

easement which was in existence prior to purchase of house by

plaintiff enured to his benefit. It was further submitted that,

plaintiff had also filed an application for additional evidence to

examine his vendor to prove existence of window but appellate

Court dismissed the same without proper reasons. It was submitted

that right of easement claimed by plaintiff was one of necessity as

there was no other window to the kitchen of plaintiff's house, which

has not been appreciated. It was submitted that, following

substantial questions of law arose for consideration in this appeal:

1. Whether the dismissal of the suit on the ground that the sale deed did not show existence of the window, was justified?

2. Whether the dismissal of the suit was justified without considering Ex.P.3 and Ex.P.4 sale deeds which show existence of public road on the northern side?

3. Whether the trial Court was justified in dismissing the suit on the ground that there is alternative access to air and light to the plaintiff's house?

8. On the other hand, Sri. B.Sharanabasawa, learned

counsel for respondent-defendants submitted that, none of the

substantial question of law proposed by appellant arose for

consideration in this appeal. The grounds urged and the proposed

substantial questions of law were all questions of fact and as finding

of facts were concurrent, no relief could be granted to appellant in

this appeal. It was submitted that, description of the boundaries in

the plaint suit schedule itself shows existence of open space

towards northern side. It was further submitted that, except

photographs Ex.P.7 - Ex.P.30, which by themselves do not

establish that they pertain to suit schedule property, plaintiff did

not place any other evidence on record to establish existence of

window. When plaintiff admitted that the window existed in the

house property from the date of its purchase by him non-

examination of his vendor by plaintiff was fatal and trial Court

rightly drew adverse inference against plaintiff. It was submitted

that, as the suit of the plaintiff was for declaration about existence

of window and right of easement of passage of air and light through

it, burden lie on plaintiff to establish said fact. It was further

submitted that, plaintiff was claiming right of easement which

existed prior to his purchase. therefore the same was required to be

mentioned in the recitals of sale deed. In the absence of the same

and failure of plaintiff to establish existence of window, finding of

trial Court on this fact was fully justified. It was further submitted

that, the attempt of plaintiff by seeking permission to lead

additional evidence to examine his vendor by filing an application

before appellate Court was to fill gaps in evidence it was rightly

rejected by appellate Court. Hence, the finding of the Courts with

regard to failure of plaintiff to establish existence of window was a

concurrent finding of fact and did not call for any interference in

this appeal, and the appeal being devoid of merit deserved to be

dismissed.

9. Heard the learned counsels, perused the impugned

Judgments and Decrees, including copies of plaint, written

statement, exhibits and depositions made available by learned

counsel for appellant.

10. From the above, it is undisputed that plaintiff is

absolute owner of suit schedule property. It is also not in dispute

that there existed some open space to northern side of plaintiff's

house. It is further not in dispute that the plaintiff's house has its

main door opening towards western side into a public road. It is

further not in dispute between parties that suit schedule house

exists as it was from date of its construction. However, dispute is

with regard to very existence of window towards northern side of

suit schedule house and about existence of public road towards

northern side and its encroachment by defendants.

11. In order to establish his case, the plaintiff examined his

son as P.W.1. In the examination-in-chief P.W.1 reiterated the

plaint averments and got marked the notarized copies of sale deeds

as Ex.P.3 and Ex.P.4; notarized copy of map as Ex.P.5; application

given to CMC, Gangavati as Ex.P.6; Photographs as Ex.P.7 to

Ex.P.30, etc., However, during cross-examination, it is elicited that

there exist road towards the western side as well as towards the

southern side of the house. It is elicited that a common wall exists

between the plaintiffs house and the defendants running east to

west and his house is on the southern side of the wall, while the

defendants house lie on the northern side of it. It is further elicited

that, there is a window in existence by the side of the main door.

The response of P.W.1 to a suggestion that the plaintiff does not

have any official documents to show the existence of the suit

window, is in the negative. The suggestions that the plaintiff filed a

suit when the defendants demanded him to remove compound

which was obstructing their ingress and egress to their open space

as also the suggestion that the plaintiff had constructed a toilet and

stairs on the public road which were objected to by the defendants

and the plaintiff as a counter blast had filed the suit are however

denied by P.W.1.

12. The plaintiff has also examined two of his neighbours as

P.W.2 and P.W.3. P.W.2 in his examination-in-chief states that he

knows the plaintiff and defendants of this case and that the plaintiff

was the absolute owner of the suit schedule house. He further state

about existence of suit window and its usage by the plaintiff for

passage of light and air to his kitchen, from the date of purchase of

the house. However, during cross-examination P.W.2 admits that

he is a resident of Anegundi. He admits that, he has not produced

any documents to show the house in which he is residing. It is

elicited from P.W.2 that the house towards north of the common

wall of the plaintiff's house belongs to defendant No.1.

13. P.W.3 also makes similar assertions as made by P.W.2,

in his affidavit filed in lieu of examination-in-chief. In his cross-

examination he admits that he is a friend of plaintiff's son. On the

other hand, defendant No.1 got himself examined as D.W.1. He

states that his father Sri. Akbarsab and deceased Khadarkhan sold

suit house and adjoining houses during the year 1976 and that

plaintiff purchased it later. He states that suit house consists of only

one room measuring 8 feet X 8 feet and did not have any kitchen

room as claimed. In his cross-examination, it is elicited that

defendant No.1 had objected to construction of toilet. It is elicited

that a shed is constructed by them as depicted in Ex.P.22, Ex.P.25

and Ex.P.26. He admits a suggestion that there was some dispute

between plaintiff and defendants regarding construction of toilet on

public road by plaintiff. It is also elicited that there exists only one

door to plaintiff's house. The suggestions that from the time of

previous owners, suit window was used for passage of air and light

is denied.

14. D.W.2 made similar assertions in his examination-in-

chief, as made by D.W.1. In his cross-examination, he is confronted

with Ex.P.22. He admits that in Ex.P.22 photographs, there exists a

window.

15. The reasons assigned by trial Court for answering issue

nos.1 to 4 are that, right of easement is a special right attached to

the property. Without its mention in conveyance deed, its existence

has to be held doubtful. In addition, plaintiff's failure to examine his

vendor to prove that he held such a right and conveyed it to

plaintiff was fatal. Trial Court also considered admission of PW1

about existence of common wall between plaintiff's house and

defendant's house, as disproving the easement claimed. It held that

admission of existence of window by side of main door established

that the easement claimed was not of necessity. It further held that

mere marking of photographs does not establish existence of

windows shown in them. The trial court cited failure of plaintiff to

have got a Court Commissioner appointed, as fatal to his case.

16. On an examination of the said reasons, it is seen that

the conclusions drawn are with due reference to the evidence on

record. They are reasonable and not perverse. The first appellate

Court after re-appreciating evidence dismissed the appeal. While

doing so it carefully examined the plaint and noticed that plaintiff

did not clearly mention exact location of suit window. He merely

stated that it is situated on the northern wall. The appellate Court

noticed absence of mention about the easement in the title deed of

the plaintiff; his failure to examine his vendor; his admission that

the northern wall of his house is common wall with the defendant's

house; and failure to get court commissioner appointed for purpose

of establishing existence of window all led to finding against

plaintiff. Insofar as application for additional evidence under Order

41 rule 27, appellate court noted that it was filed after conclusion of

arguments. It was filed to examine plaintiff's vendor! While

rejecting said application, appellate court has stated that the

provision does not provide opportunity to a party to fill up gaps in

evidence. The findings of appellate Court are based on evidence

after re-appreciation and its conclusions are justified.

17. In this case, the plaintiff has, firstly, contended that

there exists a public road towards north of suit schedule house.

Hence, plaintiff would be dominant owner of easement claimed. As

public road would vest with City Municipal Council, Gangavati, it

would be servient owner. Therefore, it was required to be arrayed

as party to the suit. In any case description of boundaries of suit

schedule property namely would reveal that no public road is

mentioned as existing towards north of plaintiff's house.

18. On the other hand, plaintiff has also claimed that there

existed an open space towards north of his plot. During cross-

examination, P.W.1 admitted that it is defendants house that lies on

northern side of common wall running from east to west. P.W.1 has

also admitted that, he does not have any documents to show

existence of suit window on northern side. It is highly unlikely for

one to have a window on a common wall. The plaintiff's failure to

show its exact location in the plaint, his failure to examine his

vendor, non-mention of the easement in the title deeds are all

relevant circumstances which are taken note of by the trial Court

and first appellate Court. The dismissal of the suit and appeal are

not solely on the ground that existence of window was not shown in

sale deed of plaintiff. The Courts have considered other

circumstances in this case. Though contents of Ex.P.3 & Ex.P.4 are

sought to be pressed into service, in the absence of any explanation

regarding difference between the boundaries in the sale deed with

one under which plaintiff purchased suit schedule property and the

plaint schedule and admission of P.W.1 regarding existence of

common wall between house of plaintiff and defendant as also the

failure of plaintiff to examine his vendor the proposed substantial

questions proposed cannot be held to arise for consideration in this

appeal. Likewise there is clear admission by P.W.1 about existence

of a window by side of main door on western side. This led to

finding about alternative access. The same, as stated above, is not

sole reason for arriving at conclusion. Hence, as none of substantial

questions of law as proposed arise for consideration in this appeal.

It is accordingly dismissed.

19. No order as to costs.

Sd/-

JUDGE

*Svh/-